5 Scary Provisions In WikiLeaks’ Trans-Pacific Partnership Release

WikiLeaks broke the seal on key parts of the secretive Trans-Pacific Partnership on Wednesday, when it released the agreement’s intellectual property chapter online.

The document details proposals for “international obligations and enforcement mechanisms for copyright, trademark and patent law, and includes the combined positions of all of the parties as they were by the end of August 2013,” according to WikiLeaks, but at 30,000 words it is a dense and complicated read.

As such, a number of advocacy groups and independent organizations have begun parsing the 95-page chapter for provisions that could prove detrimental to the public good, and they have already found quite a few problematic passages.

First some background. The TPP is a secretive agreement currently being negotiated behind closed doors by representatives of the United States, Canada, Mexico, Chile, Peru, Malaysia, Singapore, Japan, Vietnam, Brunei and Australia.

Only 700 representatives of various corporations have access to the text, which has been amended twice since the version WikiLeaks released Wednesday was drafted. The governments of the countries involved in the negotiations are not able to view the text while it is being discussed by the corporations, meaning that the public will have little to no input on what will be included in the final version.

Now concerns about the TPP are rising as the chapter released Wednesday lays out a number of provisions that could prove harmful to the citizenry of the countries impacted by the agreement, which make up about 40 percent of the world economy.

Here are five of the scariest provisions included in the Trans-Pacific Partnership Intellectual Property Chapter released Wednesday:

1. Chilling basic Internet use: The TPP’s chapter on IP deals with a host of issues, but its potential impacts on basic Internet freedom and usage are perhaps the ones that would directly impact the most people in the short term. One of the biggest concerns about the agreement raised by the Internet freedom advocacy group the Electronic Frontier Foundation centers around the concept of “temporary copies.” Here’s the text of the relevant section of the TPP’s intellectual property chapter leaked Wednesday:

“Each Party shall provide that authors, performers, and producers of phonograms have the right to authorize or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).”

The EFF wrote in a July analysis of the language – which has not been amended in the intervening months — that the provision “reveals a profound disconnect with the reality of the modern computer,” which relies on temporary copies to perform routine operations, during which it must create temporary copies of programs and files in order to carry out basic functions. This is particularly so while a computer is connected to the Internet, when it will use temporary copies to buffer videos, store cache files to ensure websites load quickly and more.

“Since it’s technically necessary to download a temporary version of everything we see on our devices, does that mean—under the US proposed language—that anyone who ever views content on their device could potentially be found liable of infringement?” the EFF wrote. “For other countries signing on to the TPP, the answer would be most likely yes.”

2. Limiting access to medicine: The countries who are party to the TPP will likely see access to affordable medicines fall if the document is ratified as it stands. Major pharmaceutical companies stand to increase profits dramatically if they can diminish the ability of consumers to purchase competing low-cost companies’ medications, and the advocacy organization Public Citizen contends that the agreement would have just that effect:

“The U.S. Trade Representative (USTR) has proposed measures harmful to access to aﬀordable medicines that have not been seen before in U.S. trade agreements,” Public Citizen stated Wednesday. “These proposals aim to transform countries’ laws on patents and medical test data, and include attacks on government medicine formularies. USTR’s demands would strengthen, lengthen and broaden pharmaceutical monopolies on cancer, heart disease and HIV/AIDS drugs, among others, in the Asia-Pacific region.”

The TPP would limit access to medicines by expanding medical patents’ scope to include minor changes to existing medications; instituting patent linkage, a regime that would make it more difficult for many generic drugs to enter markets; and lengthening the terms of patents by forcing countries to extend patents’ terms during lengthy review processes.

3. Extending patent protections to surgical methods: Another key portion of the newly released TPP chapter on intellectual property would extend patent protections to surgical methods, which are currently allowed to be excluded from patent law under the existing World Trade Organization framework, according to an independent analysis by the nonprofit organization Knowledge Ecology International.

As U.S. law currently stands, ”the performance of a medical or surgical procedure on a body” is currently exempted from various patent protections as they apply to medicines. Under the TPP, that exemption would undermined in many cases.

“The US trade negotiators then proposed adding language that would permit an exception for surgery, but only ‘if they cover a method of using a machine, manufacture, or composition of matter,’” KEI wrote on Wednesday. “The US proposal, crafted in consultation with the medical devices lobby, but secret from the general public, was similar, but different from the U.S. statute, which narrowed the exception in cases involving ‘the use of a patented machine, manufacture, or composition of matter in violation of such patent.’”

In layman’s terms, the United States’ TPP proposal would make it so that the patent protections exception would apply only to “surgical methods you can perform with your bare hands,” according to Burcu Kilic, legal counsel to Public Citizen’s Global Access to Medicines Program.

4. Lengthen copyright term protections: The preliminary version of the TPP would also rewrite the guidelines on international copyright law by lengthening the terms that copyright protections could be applied.

As it stands today under the international 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, copyright term protections are defined by country but capped at the life of the author of a work plus 50 years.

But under the TPP, longer copyright protections would likely be forced on countries that are parties to the agreement, the EFF pointed out in a discussion of a previous draft of the agreement that included similar language.

“The TPP could extend copyright term protections from life of the author + 50 years, to Life + 70 years for works by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse),” the EFF wrote.

The foundation said that the new, longer copyright term protections serve “no empirical purpose,” would do much more to bolster the profits of corporations than the artists they pay minimal royalties to, and would harm consumers by keeping works out of the public domain for far longer than under current law.

“The common justification for granting restrictive monopoly rights in copyright law is to provide an ‘incentive’ for people to generate material that can be enjoyed by the public,” the EFF wrote. “But economists and law scholars who have studied this rationale have found that ‘the optimal length of copyright is at most seven years.’”

5. Compelling Internet Service Providers to police copyright violations: Much of the TPP chapter that emerged on Wednesday concerns issues with copyright law and Internet operations, and one key provision, brings these two realms together in another scary example of the proposed agreement’s overreach.

The section in question “insists that signatories provide legal incentives for Internet Service Providers (ISPs) to privately enforce copyright protection rules,” according to an EFF analysis. “The TPP wants service providers to undertake the financial and administrative burdens of becoming copyright cops, serving a copyright maximalist agenda while disregarding the consequences for Internet freedom and innovation.”

The provision goes far further than existing statutes in many of the countries that are party to the IPP by laying out three-strike rules that would require ISPs to terminate users’ Internet access after three allegations of copyright infringement; requiring ISPs to filter online communications for possible instance of copyright infringement; obliging ISPs to block websites that may be engaged in copyright infringement; and potentially forcing ISPs to reveal identities of alleged online copyright infringers to the entities that hold the copyrights in question.

Click here to read the August draft of the Trans-Atlantic Partnership Intellectual Property Chapter draft in its entirety.